A.M. Balachandran v State of Kerala and Travancore Devaswom Board and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ``` WP(C) NO. 17242 OF 2022 ``` ## **`- PETITIONER :`** ``` A.M.BALACHANDRAN, AGED 60 YEARS ANTHYALUNKAL, EZHALLOOR .P.O. THODUPUZHA TALUK, IDUKKI - 685 605. ``` ``` BY ADVS. R.KRISHNA RAJ E.S.SONI KUMARI SANGEETHA S.NAIR RESMI A. ``` ## **`RESPONDENTS :-`** ``` *1STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, KERALA GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. *THE DESCRIPTION OF THE 1ST RESPONDENT IS SUO MOTU CORRECTED AS " STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695001". ``` ``` AS PER ORDER DATED 25.10.2022 IN WPC NO. 17242/2022. ``` ``` 2TRAVANCORE DEVASWOM BOARD DEVASWOM HEADQUARTERS, NANTHANCODE, THIRUVANANTHAPURAM-695003, REPRESENTED BY ITS SECRETARY. ``` - **`3 DISTRICT COLLECTOR COLLECTORATE, IDUKKI - 685 603.`** ``` 4SPECIAL TAHSILDAR (LAND CONSERVANCY) TRAVANCORE DEVASWOM BOARD NANDANCODE, ``` 2 W.P.(C) No.17242 of 2022 ``` THIRUVANANTHAPURAM - 695003. ``` ``` BY ADVS. SRI.G.SANTHOSH KUMAR (SC). SRI.S.RAJ MOHAN, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C) No.17242 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Ezhumuttam Sreemahadeva Temple, which is a temple under the management of the 2[nd] respondent Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking an order directing the respondents to evict the encroachment from the temple property situated in Survey No.1512/3 of Karikode Village, under the provisions of the Kerala Land Conservancy Act and as per the directions contained in Ext.P6 order dated 05.07.2018 of the Apex Court in W.P.(C)No.649 of 2018 - **Mrinalini Padhi v. Union of India [2018 (7) SCC 789 : 2018 SCC OnLine SC 667]** and take steps to protect the said land, which belongs to the minor deity of Ezhumuttam Sreemahadeva Temple. The document marked as Ext.P1 is a copy of the Settlement Register of Karikode Pakuthi in Thodupuzha Taluk of the erstwhile Travancore State, as per which, land having an extent of 13.70 Acres in Sy.No.1512/3 is shown as ‘Kavu Puramboke’. The document marked as Ext.P2, is a copy of BTR of Karikode Muri, Thodupuzha Taluk, in which 13.70 Acres of land in Sy.No.1512/3 of Karikode village is shown as ‘puramboke’. The document 4 W.P.(C) No.17242 of 2022 marked as Ext.P3 is a copy of sketch prepared by the Deputy Tahsildar, Taluk Office, Thodupuzha in respect of the aforesaid land. The document marked as Ext.P4 is a copy of communication dated 23.09.2017 of the Assistant Devaswom Commissioner, Thrikkariyoor Group, addressed to the 4[th] respondent Special Tahsildar (Land Conservancy Unit), Travancore Devaswom Board, wherein it is stated that out of the 13.70 Acres of Devaswom land, a smaller extent of 2 Acres alone is with the Devaswom. In the remaining extent, there are encroachments based on bogus purchase certificates obtained by third parties. On receipt of Ext.P4 communication, the 4[th] respondent issued Ext.P5 communication dated 19.10.2017, whereby the Assistant Devaswom Commissioner was required to forward the Land Register, Re-Survey BTR, Re-Survey Sketch, etc., of the Devaswom land having an extent of 13.70 Acres in Sy.No.1512/3 of Karikode Pakuthi, so as to enable the land conservancy unit to take further action. Alleging inaction on the part of the Travancore Devaswom Board and its officials, the petitioner is before this Court in this writ petition seeking the aforesaid reliefs. 2. On 27.05.2022, when this writ petition came up for admission, the learned Standing Counsel for Travancore 5 W.P.(C) No.17242 of 2022 Devaswom Board was directed to place on record the relevant extract of the Devaswom Land Register in respect of the properties in Sy.No.1512/3 of Karikode Village. Pursuant to that order, along with a memo dated 01.08.2022 filed by the learned Standing Counsel, the relevant extract of the Land Register in respect of the Devaswom land in Karikode Village is placed on record as Ext.R2(a). 3. The 2[nd] respondent Travancore Devaswom Board has filed a counter affidavit dated 03.02.2023. Paragraphs 4 to 10 of that counter affidavit read thus; “4. It may be noted that Ezhumuttam Sree Mahadeva temple which is included in the Scheduled list is coming under the Thrikkariyoor Group of Thodupuzha Group and as per the Settlement Survey register, the property of the temple comprises of 13.70 acres. A mere perusal of the Settlement register shows that in the remarks column, the description of the property is stated as "Kavu puramboke". However during the course of time, on account of encroachments and illegal granting of pattayams the Devaswom has only 2 acres of property in it's possession. The Assistant Devaswom Commissioners of Thrikariyoor vide Ext.P4 had informed the 4[th] respondent, Special Tahsildar regarding the above stated facts and had requested to initiate steps for evicting the encroachers from the Devaswom land to measure the property. The Assistant Devaswom Commissioner of Thrikkariyoor had also forwarded the relevant documents relating to the Devaswom as revealed from Ext.P4. In reply to 6 W.P.(C) No.17242 of 2022 the same, the 4[th] respondent had issued Ext.P5 reply stating that on perusal of the available records, it is seen that in fact it was the puramboke property which was described as Devaswom land. Therefore the 4[th] respondent had demanded for producing of the Devaswom land register Re-Sy BTR and Re-Sy Sketch. 5. It is to be noted that the 4[th] respondent on 24.03.2022 had submitted a site inspection report and it was stated that on verifying it was found that except the kshetram irippu land the other properties are in the possession and ownership of private individuals. On verifying the re-survey records, it was found that Re.Sy.No.288 and 289 correlating to old Sy.No.1512/3, the property was further made into subdivisions by several persons. The Old Sy.No.1512/3 was subdivided into 27 sub divisions without the knowledge of the TDB. 6. It is submitted that 2 acre 85 cents of property is subdivided into 10 subdivisions and it is shown as Government Puramboke. 4.3263 acres of land is subdivided into 17 subdivisions and the same is mutated in the name of private persons. Therefore it was stated that further proceedings as per the KLC Act is not possible. 7. The settlement register, Land register and other documents explicitly makes it clear that the property in Survey No. 1512/3 belongs to the Devaswom and the encroachment in the said land is an offence. As per section 27 of TCHRI Act 1950, the said land is purely Devaswom land and the Devaswom Lands are not coming in the purview of assignable land. In the original Settlement Register 13.70 Acres of land is in Old Survey No.1512/3 Al. In the classification column of that register, the land is mentioned 7 W.P.(C) No.17242 of 2022 as "Kavu Puramboke". By way of malpractice and fabricating documents the land is transferred in the names of various persons in Revenue records. It is an incorporated Devaswom and this temple is included in the list of scheduled Devaswom published as per TCHRI Act 1950. 8) As per Section 27 of TCHRI Act, "Immovable properties entered or classified in the revenue records as Devaswom Vaka or as Devaswom Puramboke and such other Pandarayaka land as are in the possession or enjoyment of Devaswom mentioned in Schedule-l after the 30[th] Meenam 1097 corresponding to the 12th April 1922, shall be dealt with as Devaswom Properties. The provisions of the Land Conservancy Act shall be applicable to Devaswom Lands as in the case of Government Lands. So this type of land has the protection of TCHRI Act 1950. 9) As per Government Circular No.43136/P1/71/RD dated 20.03.1974, it was clarified that the encroachment on Devaswom lands belonging to Travancore Devaswom Board are dealt with promptly applying the provisions of KLC Act. Moreover in the Land Reforms Act 1963, under Section 3(1) (X), it is clearly stated that the temple properties are exempted from assignment. Ezhumuttam Sree Mahadeva temple is included in the scheduled list of Temples Published as per TCHRI Act 1950. As per Section 50 of TCHRI Act 1950, all lands belonging to any Devaswom under the sole management of the Board shall be deemed to be the property of the Government for the purpose of KLC Act and all the provisions of that Act shall, so far as they are applicable, apply to such lands. Based on these Acts and Government directions, the 4[th] respondent is duty bound to initiate land conservancy case against the encroachers. 8 W.P.(C) No.17242 of 2022 10) It is further submitted that the Sub group officer, Thodupuzha had submitted a report dated 25.01.2023 before the Assistant Devaswom Commissioner, Thrikkariyoor and the same has been forwarded to the 4[th] respondent for initiating further action in the matter. The said report is forwarded along with Devaswom Land Register, Re-survey BTR and Resurvey Sketch also. A true copy of the letter dated 30.01.2023 issued by the Assistant Devaswom Commissioner, Thrikkariyoor to the 4[th] respondent is produced herewith and marked as Exhibit R1(a). Even if Purchase certificates are issued to private individuals with regard to Devaswom property without notice to the Devaswom, the same will not sustain in view of the decisions rendered by this Hon'ble Court in **Gopalakrishnan A.A. v. Secretary Cochin Devaswom Board, Thrissur and others [2018 (3) KHC 549]** and **Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** . Therefore, it is highly necessary that appropriate directions may be issued to the 4[th] respondent to initiate proceedings as per the Kerala Land Conservancy Act and to Finalize the same in a time bound manner.” 4. During the pendency of this writ petition, the petitioner filed I.A.No.1 of 2023 seeking an order to implead the alleged encroachers in Sy.No.1512/3 of Karikode Village as additional respondents 5 to 13. The petitioner has not chosen to file an application to amend the writ petition for incorporating appropriate pleadings regarding the alleged encroachment of Devaswom land by the party respondents sought to be impleaded. In the absence of any such pleadings, we do not 9 W.P.(C) No.17242 of 2022 propose to consider that interlocutory application, considering the nature of relief proposed to be granted. Accordingly, I.A.No.1 of 2023 is closed. 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 3 and the learned Standing Counsel for Travancore Devaswom Board for respondents 2 and 4. 6. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. See: **Prayar Gopalakrishnan and another v. State of Kerala and others [2018 (1) KHC 536]** . 7. In **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** , in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not, therefore, occasion any loss to the Trust and it is his duty to sell the property if at all that was necessary, to the best advantage. Paragraph 4 of that decision reads thus; 10 W.P.(C) No.17242 of 2022 “4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third 11 W.P.(C) No.17242 of 2022 person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied) 8. In **A.A. Gopalakrishnan v. Cochin Devaswom** **Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by 12 W.P.(C) No.17242 of 2022 setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 9. In **Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. Therefore, 13 W.P.(C) No.17242 of 2022 when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings. 10. In **Nandakumar v. District Collector and others** **[2018 (2) KHC 58]** a Division Bench of this Court noticed that the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the ‘ _parens patriae_ ’ jurisdiction in **Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** . The said decision was referred to and relied on by a Division Bench of this Court in **Travancore** **Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** . In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without the involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957. 11. In **A.A. Gopalakrishnan v. Secretary, Cochin** 14 W.P.(C) No.17242 of 2022 **Devaswom Board [2018 (3) KHC 549]** a Division Bench of this Court found that the task undertaken by the complainant to ensure that the property of the Devaswom is protected and preserved has ultimately brought out the plain truth that the said property was sought to be appropriated by strangers and that the property in Sy.No.1042/2 has been successfully retrieved by the Devaswom, based on the intervention made by this Court and also by the Apex Court in **A.A. Gopalakrishnan** **[(2007) 7 SCC 482]** . Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the ‘ _parens patriae_ ’ jurisdiction being entrusted with the Court in this regard, there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 12. In **Mrinalini Padhi v. Union of India [(2018) 7 SCC 789 : 2018 SCC OnLine SC 667]** - order dated 05.07.2018 in W.P.(C)No.649 of 2018 - the Apex Court noticed that the issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilisation of offerings and protection of assets may require consideration with regard to all shrines throughout India, irrespective of religion practised in such shrines. It cannot 15 W.P.(C) No.17242 of 2022 be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is a need to look into this aspect by the Central Government, apart from State Governments. Section 92 of the Code of Civil Procedure, 1908 permits a court also to issue directions for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, the Apex Court directed that, if any devotee moves the jurisdictional District Judge throughout India with any grievance on the above aspect, the District Judge may either himself/herself or assign the issue/matter to any other court under his/her jurisdiction, examine above aspects and if necessary, send a report to the High Court. The High Court will consider these aspects in public interest, in accordance with law, and issue such judicial directions as become necessary, having regard to the individual fact situation. Paragraphs 10, 11 and 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 [2018 SCC OnLine SC 667] read thus; “10. The issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilization of offerings and protection of assets may require consideration with regard to all shrines 16 W.P.(C) No.17242 of 2022 throughout India, irrespective of religion practised in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India, and there is need to look into this aspect by the Central Government, apart from State Governments. 11. Section 92 of the Code of Civil Procedure permits a Court also to issue directions for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, we direct that if any devotee moves the jurisdictional District Judge throughout India with any grievance on the above aspect, the District Judge may either himself/herself or by assigning the issue/matter to any other Court under his/her jurisdiction examine the above aspects and if necessary, send a report to the High Court. We have no doubt that the High Court will consider these aspects in public interest, in accordance with law, and issue such judicial directions as become necessary, having regard to the individual fact situation. xxx xxx xxx xxx 20. We may sum up our directions in today's orders, in addition to the orders dated 08.06.2018, as follows; i) Report of the District Judge dated 26.6.2018 is accepted in principle and action to be taken by the temple administration. ii) District Judge, Puri may send further report, if any by 31.8.2018, preferably by e-mail. 17 W.P.(C) No.17242 of 2022 iii) The State Government may submit report of the Committee constituted by it on or before 31.8.2018. iv) The Central Government may constitute its Committee, as already directed, within two weeks from today and place its interim report on record of this Court on or before 31.8.2018. v) Copy of the Report of the District Judge may be placed on the websites of the temple management, Ministry of Culture and website of the Supreme Court for two weeks. vi) The directions in the order dated 8.6.2018 may be complied with by all concerned and noncompliance thereof may be reported to this Court for appropriate action if necessary. vii) The temple management may consider, subject to regulatory measures, with regard to dress code, giving of an appropriate declaration or compliance with other directions, permitting every visitor irrespective of his faith, to offer respects and to make offerings to the deity. viii) We have noted that Hinduism does not eliminate any other belief and is eternal faith and wisdom and inspiration of centuries, as noted in earlier judgments of this Court. ix) Difficulties faced by the visitors, deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings and protections of assets with regard to shrines, irrespective of religion is a matter for consideration not only for the State Government, Central Government but also for Courts. Every District Judge throughout India may examine such matters himself or through 18 W.P.(C) No.17242 of 2022 any court under his jurisdiction and send a report to the High Court concerned so that such report can be treated as PIL on the judicial side and such direction may be issued as may be considered necessary having regard to individual fact situation. x) Learned amicus is at liberty to engage with all stakeholders and to give suggestions for bringing about improvements and also to give a report to this Court. However, this will not stand in the way of the Committee of the State Government, Committee of the Central Government or any District Judge considering matters in terms of above directions.” (underline supplied) 13. In **Ganapathy Namboothiri v. State of Kerala [2024 (1) KLT 599 : 2024 (2) KHC 1]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held that the directions issued by the Apex Court in clauses (i) to (viii) and (x) of paragraph 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi [2018** **SCC OnLine SC 667]** are in respect of the issue of public importance highlighted in that writ petition relating to the difficulties faced by the visitors to Shri Jagannath Temple at Puri and their harassment or exploitation by the Sevaks of the temple. Before the Apex Court, it was pointed out that the environment of the surroundings is not hygienic, as it ought to 19 W.P.(C) No.17242 of 2022 be, and there are encroachments. There are deficiencies in the management of the shrine and the rituals are commercialised. See: Para 1 of the order dated 08.06.2018 in W.P.(C)No.649 of 2018 **[2018 SCC OnLine SC 602]** . It is in that context that the Apex Court issued a general direction in clause (ix) of para 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi [2018 SCC OnLine SC 667]** for redressal of the difficulties faced by the devotees of all shrines throughout India, irrespective of religion practised in such shrines, on account of harassment or exploitation by those in management, unhygienic surroundings, encroachments, deficiencies in management, etc. The general direction contained in clause (ix) of para 20 is to the effect that difficulties faced by the visitors, deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings and protection of assets with regard to shrines, irrespective of religion is a matter for consideration not only for the State Government, Central Government but also for Courts. Every District Judge throughout India may examine such matters himself or through any court under his jurisdiction and send a report to the High Court concerned so that such report can be treated as PIL on the 20 W.P.(C) No.17242 of 2022 judicial side and such direction may be issued as may be considered necessary having regard to individual fact situation. 14. In **Ganapathy Namboothiri [2024 (2) KHC 1]** the Division Bench held that the petition that can be moved by a devotee in terms of the general direction contained in clause (ix) of paragraph 20 of the aforesaid order dated 05.07.2018 - **Mrinalini Padhi [2018 SCC OnLine SC 667]** of the Apex Court is not one invoking the provisions under Section 92 of the Code of Civil Procedure, since that provision of the Code, which deals with public charities, can be invoked only in the manner - provided in sub section (1) of Section 92, to obtain a decree of - any of the reliefs set out in clauses (a) to (h) of sub section (1) of Section 92, in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust. In terms of the general direction contained in clause (ix) of paragraph 20 of the order dated 05.07.2018 of the Apex Court, which is one issued for redressal of the difficulties faced by the devotees on account of deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings or protection of assets of shrines, a devotee can approach the District Judge having 21 W.P.(C) No.17242 of 2022 jurisdiction, with a petition pointing out the difficulties faced by him on account of any such matters, in which event the District Judge may examine such matters by himself or through any court under his jurisdiction and send a report to the High Court concerned, for consideration of that report in the judicial side, for issuing any direction as may be considered necessary, having regard to individual fact situation. 15. In the instant case, by Ext.P4 communication dated 23.09.2017, the Assistant Devaswom Commissioner, Thrikkariyoor Group informed the 4[th] respondent Special Tahsildar (Land Conservancy), Travancore Devaswom Board that out of 13.70 Acres of Devaswom land comprised in Survey No.1512/3 of Karikode Pakuthi in Thodupuzha Taluk of the erstwhile Travancore State, a smaller extent of 2 Acres alone is with the Devaswom. In the remaining extent there are encroachments on the basis of bogus purchase certificates obtained by third parties. By Ext.P5 communication dated 19.10.2017 of the 4[th] respondent Special Tahsildar, the Assistant Devaswom Commissioner, Thrikkariyoor Group was required to forward the land register, re-survey BTR, re-survey sketch, etc. of the Devaswom land so as to enable the Land Conservancy Unit to take further action. From the averments in paragraph 5 22 W.P.(C) No.17242 of 2022 of the counter affidavit dated 03.02.2023 of the 2[nd] respondent Travancore Devaswom Board, we notice that a site inspection by the 4[th] respondent was conducted only in the year 2022, nearly five years after Ext.P5. In that inspection it was found that except the Kshethram Iruppu Land, the other properties are in the possession of third parties. As per re-survey records, in ReSurvey No.288 and 289, co-relating to Old Survey No.1512/3, the property was further subdivided into 27 sub-divisions, without the knowledge of the Travancore Devaswom Board. 2.85 Acres of land is subdivided into 10 sub-divisions and it is shown as Government puramboke. 4.3263 Acres of land is subdivided into 17 sub-divisions and mutated in the name of third parties. In the counter affidavit, it is pointed out that in Government Circular No.43136/P1/71/RD dated 20.03.1974, it was clarified that the encroachment on Devaswom lands belonging to Travancore Devaswom Board shall be dealt with promptly, applying the provisions of Kerala Land Conservancy Act. 16. In **Jayaprakashan K. v. State of Kerala and others [2023 (3) KHC SN 14 : 2023 (3) KLT 541]** a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a party, noticed that in view of the provisions under subsection (1) of Section 3 of the Kerala Land Reforms Act, 1963, 23 W.P.(C) No.17242 of 2022 nothing in Chapter II (i.e., provisions regarding tenancies) shall apply to leases or tenancies of land referred to in clauses (i) to (xii) of the said sub-section. As per clause (x) of sub-section (1) of Section 3, nothing in Chapter II shall apply to tenancies in respect of sites, tanks and premises of any temple, mosque or church (including sites belonging to a temple, mosque or church on which religious ceremonies are conducted) and sites of office buildings and other buildings attached to such temple, mosque or church, created by the owner, trustee or manager of such temple, mosque or church. In view of the provisions under subsection (1) of Section 74, after the commencement of the Act, no tenancy shall be created in respect of any land. As per subsection (2) of Section 74, any tenancy created in contravention - of the provisions of sub section (1) shall be invalid. In view of the provisions under sub-section (1) of Section 57, as soon as may be after the receipt of the application under Section 54, the Land Tribunal shall give notice to the landowner, the intermediaries and all other persons interested in the holding, to prefer claims or objections with regard to the application. As per sub-section (2) of Section 57, the land Tribunal shall, after considering the claims and objections received and hearing any - person appearing in pursuance of the notice issued under sub 24 W.P.(C) No.17242 of 2022 section (1) and after making due enquiries, pass orders - (i) on the application, if any, pending before it from the landowner or intermediary for resumption in accordance with the provisions of Section 22; and (ii) on the application for purchase under Section 54. In view of the provisions under sub-section (1) of Section 72, on a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date. In view of the provisions under sub-section (1) of Section 72B, the cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest. As per clause (a) to the proviso to sub-section (1) of Section 72B, no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of 25 W.P.(C) No.17242 of 2022 a holding under this section if he, or if he is a member of a family, such family, owns an extent of land not less than the ceiling area. As per clause (b) to the proviso to sub-section (1) of Section 72B, where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be equal to the ceiling area. In view of the provisions under subsection (1) of Section 72BB, any landowner or intermediary whose right, title and interest in respect of any holding have vested in the Government may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A. As per Section 72C, notwithstanding anything contained in sub-section (3) of Section 72B or Section 72BB, the Land Tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in the Government under Section 72, assign such right, title and interest to the cultivating tenants entitled thereto, 26 W.P.(C) No.17242 of 2022 and the cultivating tenants shall be bound to accept such assignment. In view of the provisions under Section 72F, the Land Tribunal has to issue notices and determine the compensation and purchase price. As per sub-section (1) of Section 72F, as soon as may be after the right, title and interest of the landowner and the intermediaries, if any, in respect of a holding or part of a holding have vested in the Government under Section 72, or, where an application under Section 72B or Section 72BB has been received by the Land Tribunal, as soon as may be after the receipt of such application, the Land Tribunal shall publish or cause to be published a public notice in the prescribed form in such manner as may be prescribed, calling upon the landowner, the intermediaries, if any and cultivating tenant; and all other persons interested in the land, the right, title and interest in respect of which have vested in the Government, to prefer claims and objections, if any, within such time as may be specified in the notice and to appear before it on the date specified in the notice with all relevant records to prove their respective claims or in support of their objections. As per the mandate of sub-section (5) of Section 72F, the land Tribunal shall, after considering the claims and objections received in - - pursuance of the notice issued under sub section (1) or sub 27 W.P.(C) No.17242 of 2022 section (2) and the advice received from the village committee or village committees before the date specified therefor and hearing any person appearing in pursuance of the notice issued under sub-section (1) or sub-section (2) and after making due enquiries, pass an order specifying the matters enumerated in clauses (a) to (i) of sub-section (5). As per sub-section (1) of Section 72K, as soon as may be after the determination of the purchase price under Section 72F or the passing of an order under sub-section (3) of Section 72MM the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries if any. ## 17. In **Jayaprakashan K. [2023 (3) KHC SN 14]** the Division Bench, on an analysis of the aforesaid provisions under the Kerala Land Reforms Act, found that the said Act is a complete code by itself as far as the right of cultivating tenant to fixity of tenure in respect of his holding, the right of the cultivating tenant to get assignment of the right, title and interest in respect of his holdings, the determination by the Land 28 W.P.(C) No.17242 of 2022 Tribunal the compensation and purchase price and the issuance of purchase certificate to the cultivating tenant. The provisions under the said Act deal with the application for the purchase of the landlord's right by the cultivating tenant and the procedure for consideration of the application by the Land Tribunal, with notice to the landowner, the intermediaries, if any, the cultivating tenant and all persons interested in the land, calling upon them to prefer claims and objections, if any, and after making due enquiries. Thereafter, the Land Tribunal shall issue a certificate of purchase to the cultivating tenant. In view of the provisions under the Kerala Land Reforms (Tenancy) Rules, where the Land Tribunal is of the opinion that an application for purchase certificate has to be allowed, it shall, before it passes an order under Section 57, prepare preliminary findings on the matters enumerated in clauses (a) to (m) of sub-rule (1) of Rule 55. The Land Tribunal shall issue a notice of its findings to the landowner, every intermediary, etc., calling upon them to prefer in writings claims for the purchase price or part thereof. On receipt of the objections or claims, if any, the Land Tribunal shall consider the same and decide the claims after giving reasonable opportunity to the parties to produce such evidence as may be necessary and then proceed to pass an order under Section 57 of 29 W.P.(C) No.17242 of 2022 the Act. In such an order passed by the Land Tribunal on an application filed under Section 54 of the Act by the cultivating tenant for purchase of landlord's right, the Land Tribunal has to record its finding that the applicant is a cultivating tenant, as defined under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding. The tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions. The tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. It is well settled that, when the statute requires to do certain thing in a certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim _'expressio unius est exclusio alterius'_ meaning thereby that, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of the exercise of statutory power has first been identified by Jassel M.R. in the case of **Taylor v. Taylor [(1876) 1 Ch.D. 426]** , wherein it was 30 W.P.(C) No.17242 of 2022 laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of **Nazir Ahmed v. King Emperor [AIR 1936 PC 253]** . In **Breen v. Amalgamated Engineering Union (1971 (1) All ER** **1148)** Lord Denning, M.R. observed that the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)** it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision- taker to the controversy in question and the decision or conclusion arrived at. By the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, this Court restrained all Land Tribunals in the State from proceedings with any Original Application filed before the appointed date or S.M.Proceedings for purchase certificate in respect of Devaswom lands of Temples under the control/ management of Malabar Devaswom Board, Travancore Devaswom Board and also the Cochin Devaswom Board, without the respective Devaswom Board, represented by its Secretary, in the party array. In the said order, it was made clear that a copy of the Original Application or the report and other materials 31 W.P.(C) No.17242 of 2022 based on which S.M.Proceedings are initiated shall be enclosed along with the notice issued to the concerned Devaswom Board, through the concerned Village Officer. The Land Tribunals were directed to afford a reasonable opportunity to the concerned Devaswom Board to raise its contentions, both legal and factual. It was made clear that the decision taken by the Land Tribunals shall be one reflecting the legal and factual contentions raised by both sides. 18. In **Jayaprakashan K. [2023 (3) KHC SN 14]** , in continuation of the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, it was ordered that, in the orders passed by the Land Tribunals in the State in Original Applications/S.M.Proceedings for purchase certificate, the Land Tribunal has to record its findings that the applicant is a cultivating tenant, as defined under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding; that the tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions; and that the tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. In respect of temples which are controlled institutions under 32 W.P.(C) No.17242 of 2022 Malabar Devaswom Board, the Land Tribunals shall take note of the provisions under Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951, as per which any exchange, sale or mortgage and any lease of any immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. 19. Having considered the pleadings and materials on record and also the submissions made at the Bar, we deem it appropriate to dispose of this writ petition by directing the 2[nd] respondent Travancore Devaswom Board and the 4[th] respondent Special Tahsildar (Land Conservancy) to take necessary steps, in accordance with law, to evict all encroachments from the Devaswom land of Ezhumuttam Sreemahadeva Temple, with notice to the alleged encroachers, taking note of the law laid down in the decisions referred to supra. Necessary steps in this regard shall be initiated, within a period of one moth from the date of receipt of a certified copy of this judgment. The entire exercise in this regard shall be completed within a period of six months. Periodical action taken reports, once in every three months shall be filed by the Travancore Devaswom Board before 33 W.P.(C) No.17242 of 2022 the learned Ombudsman, which shall be considered by the learned Ombudsman with notice to the petitioner and the 2[nd] respondent Board. It would be open to the learned Ombudsman to file reports before this Court, if further directions from this Court are necessary in the matter. Registry to issue a copy of this writ petition and judgment to the learned Ombudsman, for information and necessary action. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** SMA 34 W.P.(C) No.17242 of 2022 ## **`APPENDIX OF WP(C) 17242/2022`** ``` PETITIONER EXHIBITS :- ``` ``` Exhibit P1TRUE COPY OF THE SETTLEMENT REGISTER DATED 20.03.2015. ``` ``` Exhibit P2TRUE COPY OF THE BTR DATED 20.03.2015. ``` ``` Exhibit P3TRUE COPY OF THE SKETCH DATED 20.03.2015. ``` ``` Exhibit P4TRUE COPY OF THE REQUEST OF THE ASSISTANT DEVASWOM COMMISSIONER DATED 23.09.2017. ``` ``` Exhibit P5TRUE COPY OF THE REPORT OF THE SPECIAL TAHSILDAAR DATED 19.10.2017. ``` ``` Exhibit P6RUE COPY OF THE ORDER OF THE APEX COURT IN W.P.(C)NO.649/2018 DATED 05.07.2018. ``` ``` RESPONDENT ANNEXURES :- ``` ``` Annexure-R2(a)True copy of the relevant extract of Devaswom Land Register. ``` ``` Exhibit-R2(a)True copy of the letter dated 30/01/2023 issued by the Assistant Devaswom Commissioner, Thrikkariyoor to the 4th respondent. ```